Analysis
The claimant (Rita) was the daughter of Anna Rea (T) who died on 26 July 2016. The defendants (Remo, Nino, and David) were T’s other children. Rita propounded a will dated 7 December 2015 (the 2015 Will). The defendants defended on the basis that T had lacked testamentary capacity to execute the 2015 Will, that she did not know and approve of its contents, and that her execution of it was procured by undue influence and fraudulent calumny. They counterclaimed for probate propounding an earlier will dated 29 May 1986 (the 1986 Will). At trial they had abandoned the challenge based on lack of capacity.
The 1986 Will had named Nino as executor and left T’s estate to the parties in equal shares. The 2015 Will named Rita and the parties’ cousin, Angela Contucci, as executrices and left the House to Rita. It declared that the defendants had not helped with T’s care and instructed the executors to resist any challenge by them to the 2015 Will.
T was born in Italy in 1930, migrating to England in the 1950s. She married a husband but divorced him in 1969 or 1970. From 1964 until her death, she lived at 5 Brenda Road, Tooting Bec (the House). The House was her only significant asset.
The parties left the House as they reached adulthood. Remo temporarily moved back in following his divorce until 2009. In 2009, T suffered a heart attack and Rita moved in with her partner, Paula Batson, to care for her. Remo left shortly afterwards.
Following T’s heart attack, Rita cared for her. The defendants’ contributions to T’s care were limited. From mid-2015, as T’s needs intensified, Nino and David agreed to help more. However, David told Rita that he would no longer help after 7 November 2015, and Nino was also unable or unwilling to help. This caused a falling-out between Rita and Nino and David. The 2015 Will was executed a few weeks later.
The solicitor who drafted the 2015 Will was Savita Sukul. On T’s insistence, Rita attended their meetings, but Mrs Sukul only took instructions from T. Mrs Sukul’s evidence was that T’s English was sufficient to communicate her instructions clearly, and that T was strong-willed and not suggestible. T told Mrs Sukul that she (T) wanted to leave Rita the House to ensure she (Rita) had a home and because the defendants had abandoned her (T). Mrs Sukul had T sign her notes to this effect.
Mrs Sukul advised that T be examined by a doctor to confirm that she had capacity to execute the 2015 Will. She therefore sent a ‘confirmation of assessment’ form to T’s GP of the last 10 years, Dr Qaiyum.
On 7 December 2015, T met with Mrs Sukul twice to go over a draft will and execute the final version. By this time Dr Qaiyum had returned the ‘confirmation of assessment’ form, and Mrs Sukul had received a copy of the 1986 Will. Rita remained outside during both meetings. At the first meeting, T went through the draft clause by clause and asked Mrs Sukul to remove specific and pecuniary legacies to the defendants but to leave the residue to the children in equal shares. A revised draft was then produced for the second meeting which was attended by Dr Qaiyum. Mrs Sukul again explained the will clause by clause and explained that Rita was being left the House and that the defendants were unlikely to receive anything. T confirmed that she understood this and executed the will with Mrs Sukul and Dr Qaiyum as witnesses.
Dr Qaiyum’s evidence was that his meetings with T took place in Rita’s presence, that T did not have a strong grasp of English but could understand it if it was spoken slowly, and that T had confirmed to him that she did not wish to leave anything to the defendants because Rita had been looking after her and she wanted to give her (Rita) the House and her money. His evidence was that T had understood what was said to her at the meeting at which she signed the 2015 Will because she had been spoken to slowly, that he was satisfied she had capacity, and that he had not reason to believe she was acting under pressure.
Ms Contucci and Ms Batson were summonsed by the defendants. Ms Contucci thought that there was nothing wrong with Rita and T’s relationship and that they got on well, with T being protective of Rita. However, she also said that Rita could be short-tempered and manipulative. She described T’s English as ‘basic’ and unhelped by a hearing impediment. She also said that T could be strong-willed and stubborn, and accepted that if T would have been able to understand a legal document if it was explained in simple terms. Ms Batson described T’s English as ‘clear’ and ‘better than fair’.
Remo gave evidence that T’s English was very poor and that she would have understood ‘nothing’. Rino also downplayed her English, and David described it as being ‘1 ½’ on a scale of 1-10.
Held (allowing the claim):
Professional practice
Mrs Sukul gave highly sensible advice in recommending that T obtain a mental capacity assessment. She recognised that the 2015 Will represented such a significant departure from the 1986 Will that careful precautions needed to be taken to ensure that Mrs Rea understood the implications. She also ensured to her satisfaction that Mrs Rea was acting of her own volition and without any pressure being exerted on her. If this level of care and competence was applied in every case there would be fewer disputes about wills coming before the courts (para 35).
Knowledge and approval
The correct approach to appraising knowledge and approval is that of Lord Neuberger MR in Gill v Woodall [2011] Ch 380 as summarised in Nutt v Nutt [2018] EWHC 851 (Ch). Knowing and approving the contents of a will is traditional language for saying that the will represents the testator’s intentions (Fuller v Strum [2002] 1 WLR 1097). The historic approach was to take a two-step approach, asking first whether matters had been proved to ‘excite the suspicion of the court’, and then consider whether those suspicions had been allayed. Following Gill, however, the correct approach was to take a ‘holistic’ approach, considering all available evidence, considering any inferences to be drawn from it, and asking whether the propounder has discharged the burden of proving that the testator knew and approved of the contents of the will. The fact that T has read the document and executed it will be given the full weight apposite in the circumstances but do not raise any presumption.
Rejecting Remo’s claim that T would have understood ‘nothing’ which Mrs Sukul explained to her, his evidence was ‘exaggeration to the point of hyperbole’ (para 47). Similarly, it was not possible to place ‘much reliance’ on Rino’s evidence and his ‘less exaggerated’ attempt to downplay T’s understanding (paras 49-50). Accepting the evidence of Mrs Sukul and Ms Contucci, T had clear views of her own and could be strong-willed and stubborn. She could speak English to a moderate standard and well capable of communicating her wishes and understanding what was said to her in English provided that it was simple and straightforward and not too fast (para 65).
Mrs Sukul and Dr Qaiyum’s evidence demonstrated beyond any reasonable doubt that T knew and approved the contents of the 2015 Will and that its terms represented her genuine intentions. Rita had therefore discharged the burden of proving knowledge and approval (para 66).
Undue influence
The law is as summarised by Lewison J in re Edwards [2007] WTLR 1387 at [47] (quoted in full at para 64 of the judgment).
The relationship between the parties was fractious, occasionally spilling over into threats of, and actual, violence (para 67). However, the defendants’ attempts to ‘blacken’ Rita’s character were not accepted (para 68). In any case, there was no evidence of any attempt by Rita to coerce or pressure T into changing her will (para 69). The defendants’ case was based purely on inference based on her alleged personality – even if the basis for the inference had been accepted, it would have fallen far short of discharging the burden of proof on a person asserting undue influence (para 69).
Mrs Sukul and Dr Qaiyum’s evidence provided a strong basis for concluding that T made the 2015 Will of her own volition. Her alleged motive, that Rita had taken care of her, was true. In recognising this and in wishing to act accordingly to benefit Rita, T had acted as a free agent (para 70). This was supported by Ms Contucci’s evidence that T would have wanted to help Rita and was protective of her, and by David’s own evidence that T had ‘a soft spot’ for Rita.
Fraudulent calumny
Fraudulent calumny is a species of undue influence. To succeed, the defendants needed to show that Rita cast a dishonest aspersion on their characters (re Edwards and Christoloulides v Marcou [2017] EWHC 2632 (Ch)).
As with undue influence, the defendants’ case on fraudulent calumny was based on inference from Rita’s supposedly bad character. Again, the basis for this inference was not accepted (para 75). It was therefore not necessary to determine whether Rita genuinely believed that the defendants had ‘abandoned’ her. Mrs Sukuls, Dr Qaiyum, and Ms Contucci’s evidence demonstrated that T acted of her own volition and on the basis of her own decision to benefit Rita who had looked after her for years, in contrast to the defendants who had not. The basis for the declaration in the 2015 Will to this effect was true. Even if it had not been true, the words and feelings behind it were T’s own. She had made her own decision on the matter without anyone having poisoned her mind (para 76).
The defendants’ argument that the word ‘abandoned’ in Mrs Sukul’s notes did not represent T’s language and was instead a calumny by Rita could not be accepted. T understood the term since it was very similar to an equivalent word in Italian, and T had used it in relation to her husband who deserted her. While it might be a harsh assessment, it represented her view as intimated to Mrs Sukul.
JUDGMENT DEPUTY MASTER ARKUSH: These proceedings [1] The parties in this probate claim are the children of Anna Rea (“Mrs Rea”) who died on 26 July 2016 aged 85. Mrs Rea’s daughter as claimant seeks to establish the will dated 7 December 2015 (“the 2015 Will”) of her mother and asks for a grant of …Continue reading "Rea v Rea & ors [2019] WTLR 1231"